1. Under the Fourth Amendment to the United States Constitution and § 15 of the
Kansas
Constitution Bill of Rights, a passenger in a vehicle is seized when a law enforcement
officer stops the vehicle through a show of authority and the passenger does not flee.

2. Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005),
does not alter
the general rule that a law enforcement officer violates the Fourth Amendment to the
United States Constitution and § 15 of the Kansas Constitution Bill of Rights by asking a
passenger in a vehicle stopped for a traffic violation to consent to a search that is unrelated
to the purpose of the stop.

3. An unconstitutional seizure may infect or taint a consent to search as well as any fruits of a
law-enforcement-citizen encounter if the nature of the seizure renders the consent to
search involuntary. Conversely, a voluntary consent to search can purge the primary
taint
of an illegal seizure where the connection between the lawless conduct of the police and
the discovery of the challenged evidence has become so attenuated as to dissipate the
taint.

Review of the judgment of the Court of Appeals in an unpublished opinion filed January
26, 2007.
Appeal from Cowley district court; NICHOLAS M. ST. PETER, judge. Judgment of the Court of
Appeals
reversing the district court is reversed. Judgment of the district court is affirmed and remanded.
Opinion filed May
30, 2008.

Larry R. Schwartz, of Arkansas City, was on the brief for appellee.

James R. Spring, deputy county attorney, Christopher Smith,
county attorney, and Phill Kline, attorney
general, were with him on the brief for appellant.

The opinion of the court was delivered by

LUCKERT, J.: In Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S.
Ct. 1465
(2005), the United States Supreme Court held that law enforcement officers could ask questions
unrelated to the purpose of a search when executing a warrant authorizing the search of a
residence. This case raises the question of whether that decision alters our longstanding rule that a
law enforcement officer violates the Fourth Amendment to the United States Constitution and
§
15 of the Kansas Constitution Bill of Rights by asking a passenger in a vehicle stopped for a
traffic violation to consent to a search that is unrelated to the purpose of the stop.

We conclude it does not. Mena does not overrule longstanding precedent
limiting the
scope of an investigatory detention, does not address the question of the scope of an investigatory
detention, and is factually and legally distinguishable from this case.

Facts

In the early morning hours of September 22, 2005, Officer Nick Carter saw a vehicle with
a broken taillight driving down a road in Winfield, Kansas. Carter followed the vehicle. Before he
could signal the driver to pull over, the driver parked the vehicle in an angled parking space on the
side of the street. Carter stopped his patrol car behind it and activated the emergency lights. While
checking the license plate number with the dispatcher, Officer Carter noticed the vehicle had
expired tags. The driver got out and approached the patrol car. Carter spoke to the driver about
the reason for the stop (the broken taillight) and also asked him about the expired tag. When
Officer Carter checked the vehicle's tag information and VIN number with police dispatch, he
discovered that the tag was illegal. The driver told Carter that the car belonged to his girlfriend
and he did not know anything about the tag. According to Carter's testimony, "the vehicle was
going to be towed; [and] the driver was going to get a citation."

Lacey Smith, who was a passenger in the stopped vehicle, got out of the car and sat down
on some nearby steps while Officer Carter spoke to the driver. Carter recognized Smith and knew
her by name. He testified that Smith was not the registered owner of the car or the license tag,
and he did not believe Smith was the driver's girlfriend. Aside from briefly greeting Smith, Officer
Carter interacted solely with the driver of the vehicle.

Meanwhile, Officer Cory Gale heard over the police radio that Carter had made the stop.
Gale drove to the scene to provide backup assistance, a practice he indicated was common during
nighttime stops. After seeing Smith sitting near the vehicle, Officer Gale also recognized her and
determined she was a passenger. Based on information received sometime before this traffic stop,
Gale suspected Smith possessed drugs and intended to ask her permission to search her purse.
Gale approached Smith and asked how she was doing and if he could look inside her purse. Smith
consented, and inside her purse, Gale discovered a bag containing methamphetamine. Officer Gale
arrested Smith and took her to the police station.

Officer Carter was still in the process of issuing a citation to the driver when Officer Gale
and Smith left the scene. At the police station, Gale discovered further incriminating evidence in
Smith's possession, including drug paraphernalia. Smith also made some incriminating statements.

Procedural Background

The State charged Smith with felony possession of methamphetamine and misdemeanor
possession of drug paraphernalia. Smith filed a motion to suppress the evidence seized during the
search of her purse and person and to suppress her subsequent incriminating statements. At the
hearing on the motion, the State conceded that Officer Gale did not have reasonable suspicion to
search Smith's purse. It argued instead that Smith consented to the search.

The district court found that Smith had been lawfully seized but the questions Officer Gale
asked her at the beginning of the encounter exceeded the scope of the stop and were improper.
The court also found that Smith's consent was given during the seizure and there was not a
"sufficient attenuation of a seizure to justify the search." Therefore, Smith's motion to suppress
was granted.

The district court subsequently granted the State's request for permission to file an
interlocutory appeal. The State perfected its appeal to the Court of Appeals, where the district
court's decision was reversed. In so ruling, the Court of Appeals rejected the State's contention
that Smith was never "seized" by authorities. Rather, the panel concluded the broken taillight
provided a basis for a legal seizure and Smith was subject to a Terry v. Ohio, 392
U.S. 1, 20 L.
Ed. 2d 889, 88 S. Ct. 1868 (1968), investigatory detention.

The panel pointed out that when Officer Gale arrived on the scene he immediately
contacted Smith and questioned her about matters unrelated to the taillight. The Court of Appeals
stated: "Prior to the case of Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125
S. Ct. 1465
(2005), this would have rendered the seizure illegal because such questioning was unrelated to the
purpose of the traffic stop and fell outside of the permissible scope of a Terry-based
detention."
Slip op. at 6. The panel concluded Mena permits officers to question a person during
a lawful
detention about matters unrelated to the reason for the detention. Therefore, the panel found Gale
could question Smith about matters unrelated to the purpose of the stop, i.e., the
broken taillight,
so long as the questions did not increase the duration of the stop.

The Court of Appeals observed that Officer Gale asked Smith two questions in quick
succession: how she was doing and whether he could search her purse. Neither of these questions,
according to the panel, extended the length of the traffic stop. The panel highlighted the fact that
Officer Carter was still in the process of issuing the citation to the driver when Officer Gale
arrested Smith.

With regard to the question of Smith's consent, the panel stated it was not faced with the
issue of whether her consent removed the taint of a prior violation of Smith's Fourth Amendment
rights. This conclusion was explained by the panel's determination that Smith was "lawfully seized
and had suffered no violation of her rights." Slip op. at 7-8. Thus, in the panel's view, it was left
only with the issue of whether Smith's consent was voluntary.

Finding that Smith, under a legal detention, offered nothing to indicate she was forced or
coerced in any manner to permit Officer Gale to search her purse, the Court of Appeals held that
Smith's consent provided the legal basis for the search. Because the panel determined that the
search of Smith's purse was legal, it also found that the evidence discovered in her possession at
the police station and any incriminating statements made later by Smith did not constitute fruit of
the poisonous tree. The district court, therefore, was reversed.

We now consider Smith's petition for review.

Standard of Review

Our standard of review is well known. An appellate court reviews the factual
underpinnings of the decision on a suppression motion by a substantial competent evidence
standard and the ultimate legal conclusion by a de novo standard with independent judgment.
State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). Appellate courts do
not reweigh
evidence, assess the credibility of witnesses, or resolve conflicts in the evidence. State v.
Ackward,
281 Kan. 2, 8, 128 P.3d 382 (2006); State v. Jones, 279 Kan. 71, 73, 106 P.3d 1
(2005). The
State has the burden of proving that a search and seizure was lawful. Thompson, 284
Kan. at 772;
State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).

The issue in this case arises under the Fourth Amendment to the United States
Constitution and § 15 of the Kansas Constitution Bill of Rights, which assure each person's
right
to be secure in his or her person and property against unreasonable searches and seizures. An
analysis of the motion to suppress requires a determination of whether there was a seizure and
whether the subsequent search was valid. Thompson, 284 Kan. at 772.

Was Smith Seized? A seizure occurs when there is a "show of
authority which, in view of all the
circumstances surrounding the incident, would communicate to a reasonable person that he or she
is not free to leave and the person submits to the show of authority." State v. Morris,
276 Kan.
11, 18-19, 72 P.3d 570 (2003). The law recognizes that a traffic stop is a seizure under the Fourth
Amendment. Thompson, 284 Kan. at 773.

The seizure resulting from a traffic stop is analyzed as being more akin to an investigatory
detention than an arrest. As a result, courts examine the reasonableness of a traffic stop under the
principles set forth in Terry v. Ohio, 392 U.S. 1, and codified by the Kansas
Legislature in K.S.A.
22-2402(1). Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 99 S. Ct.
1391 (1979);
Thompson, 284 Kan. at 773.

Terry is premised upon the basic Fourth Amendment right of each person to
be secure in
his or her person and property against unreasonable searches and seizures. 392 U.S. at 8; see
Ybarra v. Illinois, 444 U.S. 85, 91-92, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979). This
principle
incorporates two precepts. First, "'the Fourth Amendment protects people, not places.' [Citation
omitted.]" Terry, 392 U.S. at 9. Second, "'what the Constitution forbids is not all
searches and
seizures, but unreasonable searches and seizures.' [Citation omitted.]" Terry, 392
U.S. at 9.
Indeed, "the 'touchstone of the Fourth Amendment is reasonableness.' Reasonableness, in turn, is
measured in objective terms by examining the totality of the circumstances." Ohio v.
Robinette,
519 U.S. 33, 39, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996) (quoting Florida v.
Jimeno, 500 U.S.
248, 250, 114 L. Ed. 2d 297, 111 S. Ct. 1801 [1991]); see Thompson, 284 Kan. at
792.

Terry breaks the analysis of the legality of traffic stops into two parts: (1)
"whether the
officer's action was justified at its inception" and (2) "whether it was reasonably related in scope
to the circumstances which justified the interference in the first place." 392 U.S. at 20.

Under the first prong of the test, in order to stop and detain a person, a law enforcement
officer must have a reasonable suspicion that criminal activity is taking place, has taken place, or
is about to take place. State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998).
Such activity
includes traffic violations. See Thompson, 284 Kan. at 773.

Here, Officer Carter observed a taillight infraction and then discovered an illegal tag.
These violations justified the stop, and Smith does not dispute the reasonableness of the driver's
detention. Nor do the parties dispute that this case should be analyzed as a traffic stop even
though the driver had parked the car before Officer Carter activated his lights.

Nevertheless, the State asserts that the valid investigatory stop of the vehicle triggered
only a seizure of the driver, and the district court and Court of Appeals panel erred in ruling
otherwise. With regard to Smith, the State contends the encounter was consensual. Pointing out
that Smith was neither ordered to remain in the vehicle nor prevented from exiting the car, the
State asserts: "That Smith chose to remain in the area does not mean she was not free to
leave–she simply chose not to."

After the filing of the Court of Appeals' decision and the parties' briefs before this court,
the United States Supreme Court decided Brendlin v. California, 551 U.S. __, 168 L.
Ed. 2d
132, 127 S. Ct. 2400 (2007), and held that a passenger in a vehicle is seized for Fourth
Amendment purposes when a law enforcement officer stops the vehicle through a show of
authority and the passenger does not flee.

In Brendlin, the Court rejected the same argument as asserted by the State in
this case,
i.e., that the show of authority in a traffic stop was directed toward the driver and not
toward
passengers. The Court ruled that in pulling over a particular car, the law enforcement officer "acts
with an implicit claim of right based on fault of some sort," and, understanding that, a reasonable
passenger would "expect to be subject to some scrutiny" even though it is the driver who has
committed a wrong. 168 L. Ed. 2d at 140. The Court noted that a passenger is present at the
"physical focal point of an investigation," and at that point a reasonable person would not expect
an officer to "let people move around in ways that could jeopardize his safety." 168 L. Ed. 2d at
140. Consequently, there exists a societal expectation of "'"unquestioned [police] command"' at
odds with any notion that a passenger would feel free to leave, or to terminate the personal
encounter any other way, without advance permission. [Citation omitted.]" 168 L. Ed. 2d at 140.

A seizure does not occur simply because there has been a show of authority, however.
There must be a submission to that authority. In Brendlin, the Court considered
whether a
passenger, who has no control over the vehicle, submits to the law enforcement officer's
authority. Noting that submission can be passive, the Court indicated "one sitting in a chair may
submit to authority by not getting up to run away." 168 L. Ed. 2d at 142. Consequently, even
though a passenger had "no effective way to signal submission while the car was still moving on
the roadway, . . . once it came to a stop he could, and apparently did, submit by staying inside."
168 L. Ed. 2d at 142-43.

This approach is consistent with the test utilized in Kansas for determining if a seizure has
occurred. See State v. Morris, 276 Kan. 11, 19, 72 P.3d 570 (2003).

In this case, it is not clear that the driver parked in response to the presence of the law
enforcement officer and, apparently, there had been no show of authority by the officer at that
point. That situation changed when Officer Carter pulled behind the car, blocked it, and activated
emergency lights. A reasonable occupant in the car, whether a driver or a passenger, would
understand the officer's actions to be a display of authority directed to everyone in the vehicle. In
other words, "all the occupants were subject to like control by the successful display of
authority." 168 L. Ed. 2d at 141.

Smith's submission to this authority is not as clear as was Brendlin's. Smith moved from
the vehicle to sit on nearby steps rather than remaining in the car. Yet she did not walk away; she
remained at or near the physical focal point of the investigation in a passive submission to the
show of authority. Under the totality of the circumstances, we affirm the district court's and Court
of Appeals' determinations that Smith was seized for purposes of application of the Fourth
Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of
Rights.

Scope of Detention

Smith, while conceding the seizure was initially valid, contends her seizure became
unlawful when Officer Gale exceeded the permissible scope of the stop. Before the district court
and Court of Appeals she argued that the question asked by Officer Gale–something like,
"can I
look in your purse?"–was unrelated to the purpose of the traffic stop. Now that the Court
of
Appeals panel held that this scope argument is no longer valid in light of Mena, 544
U.S. 93,
Smith argues the panel's broad interpretation and subsequent application of Mena
erroneously
changes established search and seizure law in Kansas.

Smith's argument rests on the second prong of the Terry test–whether
the detention was
reasonably related in scope to the circumstances which justified the interference in the first place.

Subsequent to the Terry decision, the United States Supreme Court has
attempted to
clarify this prong of the two-part test. In Florida v. Royer, 460 U.S. 491, 75 L. Ed.
2d. 229, 103
S. Ct. 1319 (1983), the Court determined "[i]t is the State's burden to demonstrate that the
seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope
and duration to satisfy the conditions of an investigative seizure." (Emphasis added.)
460 U.S. at
500. Regarding the limitation on the duration of the traffic stop, the Court stated that "an
investigative detention must be temporary and last no longer than is necessary to effectuate the
purpose of the stop. Similarly, the investigative methods employed should be the least intrusive
means reasonably available to verify or dispel the officer's suspicion in a short period of time." 460
U.S. at 500.

To determine whether law enforcement officers have complied with the temporal
limitation articulated for evaluating the propriety of a Terry stop, courts must "take
into account
whether the police diligently pursue[d] their investigation." United States v. Place,
462 U.S. 696,
709, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983). Specifically, courts examine "whether the police
diligently pursued a means of investigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the defendant." United States v.
Sharpe, 470
U.S. 675, 686, 84 L. Ed. 2d 605, 105 S. Ct. 1568 (1985).

Applying these cases to traffic stops, Kansas appellate courts have defined the
Terry test
to mean that a law enforcement officer may request the motorist's driver's license, car registration,
and proof of insurance; conduct a computer check; issue a citation; and take those steps
reasonably necessary to protect officer safety. The stop can last only as long as necessary to
complete those tasks, and those tasks must be diligently pursued. Thompson, 284
Kan. at 774;
DeMarco, 263 Kan. at 734; see also K.S.A. 22-2402(2) (during a Terry
stop, if an officer
"reasonably suspects that such officer's personal safety requires it, such officer may frisk such
person for firearms or other dangerous weapons"). If no information raising a reasonable and
articulable suspicion of illegal activity is found during the time period necessary to perform the
computer check and other tasks incident to a traffic stop, the motorist must be allowed to leave
without further delay. Thompson, 284 Kan. at 774; State v. Mitchell, 265
Kan. 238, 245, 960
P.2d 200 (1998); see also State v. Damm, 246 Kan. 220, 224-25, 787 P.2d 1185
(1990) (after
citation written, driver could not be detained while records of passengers checked).

Decisions of the Tenth Circuit Court of Appeals are in accord, and that court routinely
states the same general rules. E.g., United States v. Rosborough, 366 F.3d 1145,
1148 (10th Cir.
2004). The Tenth Circuit takes the view that "'[a] detention for a traffic citation can turn into a
consensual encounter after the trooper has returned the driver his documentation so long as a
reasonable person under the circumstances would believe he was free to leave or disregard the
officer's request for information.' [Citation omitted.]" United States v.
Guerrero-Espinoza, 462
F.3d 1302, 1308 (10th Cir. 2006).

Before the decision in Mena, 544 U.S. 93, the Tenth Circuit restricted the
scope of any
questions asked during a traffic stop to those related to the purpose of the Terry
encounter. This
was held to include questions regarding identification and weapons; other investigatory questions
were not allowed. See, e.g.,United States v. Holt, 264 F.3d 1215, 1227,
1230 (10th Cir. 2001)
(weapons), modified by United States v. Stewart, 473 F.3d 1265 (10th Cir. 2007).

After the Mena decision, the Tenth Circuit adopted a broader approach to a
law
enforcement officer's questioning during a traffic stop, holding "there is no Fourth Amendment
issue with respect to the content of the questions" if the stop's duration is not extended.
United
States v. Wallace, 429 F.3d 969, 974 (10th Cir. 2005); see also Stewart, 473
F.3d at 1268-69
("suspicionless" questioning of a driver by law enforcement officer during course of traffic stop
regarding weapons and contraband is not Fourth Amendment violation so long as it does not
extend duration of traffic stop); United States v. Alcaraz-Arellano, 441 F.3d 1252,
1258-59 (10th
Cir. 2006) (quoting Wallace).

The Court of Appeals relied upon this contemporary line of Tenth Circuit decisions in
holding that the scope restrictions previously enforced in Kansas were altered by
Mena. The
panel's reliance on these cases was misplaced, however. Generally, those cases involved fact
patterns where law enforcement officers asked questions and developed a reasonable suspicion of
criminal activity because of the answers. That is not the situation in this case where the State
concedes there was no basis for the search other than consent.

In addition, the Court of Appeals' analysis does not consider a line of cases in which some
panels of the Tenth Circuit have recognized a distinction between the permissibility of asking
questions on any topic and of conducting a search based upon a question like "may I search?" In
these cases, even though the Tenth Circuit panels allowed questions outside the purpose of a
traffic stop, they held the searches were not constitutionally permissible. See United States
v.
Valenzuela, 494 F.3d 886, 891 n.2 (10th Cir. 2007) (recognizing and discussing
distinction);
United States v. Yeomans, 2007 WL 30032, at *4-5 (10th Cir. 2007) (unpublished)
(rejecting
passenger's argument that questions exceeded scope of stop but invalidating consent to search
given during detention); Guerrero-Espinoza, 462 F.3d at 1304-08 (invalidating
passenger's
consent given after purpose of stop concluded because questioning extended stop that had not
evolved into consensual encounter, and stating general rules regarding scope).

In reaching these holdings, each of the Tenth Circuit panels reiterated the
pre-Mena view
that a traffic stop must be completed and the driver's license returned before a search based upon
consent could be valid. This conclusion was supported with precedent rooted in
pre-Mena
analysis, but there was no explanation of why the rule remains valid in light of the panel's
expanded view regarding the permissible scope of a traffic stop. This lack of analysis leaves
unanswered questions: Is the search invalid because the search exceeded the permissible scope of
a Terry stop (as opposed to a question exceeding the scope)? Did the search
impermissibly extend
the duration of the vehicle stop? Or, was the consent involuntary? The lack of clarification
diminishes the persuasiveness of the Tenth Circuit cases and restrains us from resolving this case
by simply citing those cases that are contrary to the Court of Appeals' decision.

Nevertheless, the Court of Appeals panel in this case incorrectly concluded that Tenth
Circuit cases supported its holding. Consequently, the only remaining rationale for the panel's
decision is its interpretation of Mena, an interpretation which we conclude was in
error.

Mena was an action for damages under 42 U.S.C. § 1983 (2000). Iris
Mena alleged the
Fourth Amendment was violated when law enforcement officers detained her while they executed
a search warrant in the house she occupied and, at the same time, asked her questions about her
immigration status. She argued the questions were unrelated to the purpose of her detention,
which was to look for deadly weapons and evidence of gang membership. 544 U.S. at 100-01.
The federal court of appeals agreed. In addition, the court found the detention was not reasonable
and that "the officers were required to have independent reasonable suspicion in order to question
Mena . . . because the questioning constituted a discrete Fourth Amendment event." 544 U.S. at
100-01. See Mena v. Simi Valley, 332 F.3d 1255, 1264-66 (9th Cir. 2003).

The United States Supreme Court reversed. Initially, the Court focused on the
reasonableness of Mena's detention, finding: (1) Michigan v. Summers, 452 U.S. 692,
69 L. Ed.
2d 340, 101 S. Ct. 2587 (1981), allowed occupants of a residence to be detained while a search
warrant was executed; (2) the degree of force was appropriate for the circumstances; and (3) the
2- to 3-hour duration was necessary given the nature of the search. 544 U.S. at 98.

In addition, the Court considered the issue of whether questioning was a discrete Fourth
Amendment event requiring independent reasonable suspicion. It stated:

"The Court of Appeals also determined that the officers violated Mena's Fourth
Amendment rights by questioning her about her immigration status during the detention.
[Citation omitted.] This holding, it appears, was premised on the assumption that the officers
were required to have independent reasonable suspicion in order to question Mena concerning
her immigration status because the questioning constituted a discrete Fourth Amendment event.
But the premise is faulty. We have 'held repeatedly that mere police questioning does not
constitute a seizure.' Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111
S. Ct. 2382
(1991); see also INS v. Delgado, 466 U.S. 210, 212, 80 L. Ed. 2d 247, 104 S. Ct.
1758 (1984).
'[E]ven when officers have no basis for suspecting a particular individual, they may generally ask
questions of that individual; ask to examine the individual's identification; and request consent to
search his or her luggage.' Bostick, [501 U.S.] at 434-35 (citations omitted)." 544
U.S. at 100-01.

Consequently, the Supreme Court concluded the questioning did not create an additional
seizure
of Mena and, therefore, the law enforcement officers did not need reasonable suspicion to justify
her interrogation. 544 U.S. at 101.

The Mena Court cited a traffic stop case, Illinois v. Caballes, 543
U.S. 405, 407, 160 L.
Ed. 2d 842, 125 S. Ct. 834 (2005), as instructive. In Caballes, the Court
held the Fourth
Amendment does not require a reasonable, articulable suspicion to justify using a drug-detection
dog to sniff the outside of a vehicle during a legitimate traffic stop as long as the duration of the
stop is not extended. The Court concluded a dog sniff of a car's exterior did not compromise a
legitimate privacy interest and, therefore, was not a search. 543 U.S. at 407.

The Mena Court's discussion of and reliance upon Caballes was
limited to the question of
whether, after the initial detention, there was an additional Fourth Amendment
event–either a
search (under the facts of Caballes) or a seizure (under the facts of
Mena). Neither the Mena or
the Caballes majority decisions discussed Terry nor the scope of a
Terry stop. One of the
Caballes dissenting opinions was based upon Terry, with the dissenters
concluding the dog sniff
exceeded the permissible scope of the Terry stop. The Caballes majority
did not disagree with or
even discuss this analysis. Rather, the majority's response seems to be a statement that the issue
on which certiorari was granted "is narrow: 'Whether the Fourth Amendment requires reasonable,
articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate
traffic stop.'" 543 U.S. at 407.

Although Terry is not discussed in Mena,Michigan v.
Summers, 452 U.S. 692, 69 L. Ed.
2d 340, 101 S. Ct. 2587 (1981)–the case cited by the Court as precedent for its conclusion
that
Mena's detention was permissible–considered the application and rationale of
Terry. In Summers,
as in Mena, the Court considered the reasonableness of detaining occupants of a
residence while a
search warrant was executed. In Summers' case, he was descending the front steps of the
residence when law enforcement officers encountered him, ordered him inside, and required him
to remain during the search. The Court considered whether that initial seizure and the subsequent
detention violated the Fourth Amendment.

Noting a general rule that probable cause must support a seizure if it is as intrusive as an
arrest, the Court cited exceptions where the intrusion "'was so much less severe' than that
involved in a traditional arrest that 'the opposing interests in crime prevention and detection and in
the police officer's safety' could support the seizure as reasonable. [Citation omitted.]" 452 U.S. at
698. One such circumstance is a Terry stop, where the Court "recognized the
narrow authority of
police officers who suspect criminal activity to make limited intrusions on an
individual's personal
security based on less than probable cause." (Emphasis added.) 452 U.S. at 698. The Court
emphasized the differences in the character of and justifications for the seizure in a
Terry stop as
compared to Summers' detention. Speaking of the detention at issue in Summers, the
Court noted:

"Of prime importance in assessing the intrusion is the fact that the police had
obtained a
warrant to search respondent's house for contraband. A neutral and detached magistrate had
found probable cause to believe that the law was being violated in that house and had authorized
a substantial invasion of the privacy of the persons who resided there. The detention of one of the
residents while the premises were searched, although admittedly a significant restraint on his
liberty, was surely less intrusive than the search itself." 452 U.S. at 701.

Later in the opinion, the Court returned to this point, noting: "The existence of a search
warrant,
however, also provides an objective justification for the detention." 452 U.S. at 703. The Court
also noted:

"[A] neutral magistrate rather than an officer in the field has made the critical
determination that
the police should be given a special authorization to thrust themselves into the privacy of a home.
The connection of an occupant to that home gives the police officer an easily identifiable and
certain basis for determining that suspicion of criminal activity justifies a detention of that
occupant." 452 U.S. at 703-04.

Thus, in a Summers situation "the officer is not required to evaluate either the
quantum of proof
justifying detention or the extent of the intrusion to be imposed by the seizure." 452 U.S. at 705
n.19.

In contrast, in a Terry stop there is no warrant, and the stop occurs on the
basis of a
reasonable suspicion of a law enforcement officer rather than upon a showing of probable cause
considered by a detached magistrate. As the Court pointed out in Summers, the
Fourth
Amendment allows such a stop because of its limited nature and because the officer's authority is
narrow. 452 U.S. at 698, 700 n.11. This does not mean that the officer has no authority. In fact,
the Summers Court noted several investigative techniques were available; "'[t]he most
common is
interrogation, which may include both a request for identification and inquiry concerning the
suspicious conduct of the person detained.' 3 W. LaFave, Search and Seizure § 9.2, pp.
36-37
(1978)." 452 U.S. at 700 n.12.

Limiting interrogation to the individual's identity and the circumstances of the suspicious
conduct was consistent with the Court's discussion of balancing the interests required by the
Fourth Amendment. This view of the limited and narrow scope of a Terry stop was
reaffirmed in
United States v. Sharpe, 470 U.S. at 682, 686-87, when the Court emphasized that
traffic stops
must be minimally intrusive, diligently pursued, and a law enforcement officer's actions must be
reasonably related in scope to circumstances which justified the initial interference.

More recently, the limited nature of the scope of questioning during a Terry
stop was
addressed in Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S.
177, 185, 159
L. Ed. 2d 292, 124 S. Ct. 2451 (2004). In that case, law enforcement officers investigating an
assault approached the defendant and asked for identification, which he refused to produce. He
was arrested and convicted of obstruction based upon a Nevada statute that required individuals
to identify themselves if requested to do so by an officer during a Terry stop. The
Court described
the Nevada statute as a "stop and identify" provision and noted that many states have similar
statutes. 542 U.S. at 182 (citing K.S.A. 22-2402[1] [2003]).

Hiibel argued (1) the request was not related to the purpose of the stop and, therefore,
exceeded the constitutionally permitted scope of a Terry stop and (2) the refusal
could not be
criminalized in situations where there was no probable cause. The Court rejected both arguments
under the facts of the case. Nevertheless, the analysis emphasized the limited nature of
Terry
inquiries.

The Hiibel Court began its analysis with the issue of whether the question was
permissible. As the first step in answering this question, the Court considered whether asking the
question constituted a seizure and concluded: "'[I]nterrogation relating to one's identity or a
request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.'
Delgado v. INS, 466 U.S. 210, 216, 80 L. Ed. 2d 607, 104 S. Ct. 1758 (1975)." 542
U.S. at 185.
Delgado, like Mena, focused on the issue of whether there was a seizure.

The next step of analysis in Hiibel marks the point where that decision (and
this one)
depart from Delgado, Caballes,Mena, and other cases addressing
whether a discrete Fourth
Amendment event has occurred. That next step is consideration of the constitutionally permissible
scope of a Terry stop. The Hiibel Court noted: "To ensure that the
resulting seizure is
constitutionally reasonable, a Terry stop must be limited. The officer's action must be
'"justified at
its inception, and . . . reasonably related in scope to the circumstances which justified the
interference in the first place."' [Citations omitted.]" 542 U.S. at 185. The Court then noted that
its "decisions make clear that questions concerning a suspect's identity are a routine and accepted
part of many Terry stops." 542 U.S. at 186.

Next, the Court addressed the second issue of whether the failure to respond to the
request for identity could be criminalized. Noting that past decisions had left "an open question"
of whether the suspect could be arrested and prosecuted for refusing to answer, the Court
concluded "[t]he principles of Terry permit a State to require a suspect to disclose his
name in the
course of a Terry stop." 542 U.S. at 187. The rationale of that conclusion was tied to
the scope
limitations of a Terry stop:

"The request for identity has an immediate relation to the purpose, rationale, and
practical
demands of a Terry stop. The threat of criminal sanction helps ensure that the
request for identity
does not become a legal nullity. On the other hand, the Nevada statute does not alter the nature of
the stop itself: it does not change its duration [citation omitted], or its location [citation omitted].
A state law requiring a suspect to disclose his name in the course of a valid Terry stop
is
consistent with Fourth Amendment prohibitions against unreasonable searches and seizures."
(Emphasis added.) 542 U.S. at 188.

The Court recognized the defendant's argument that the statute "circumvents the
probable-cause requirement, in effect allowing an officer to arrest a person for being suspicious."
542 U.S. at 188. In addressing this concern, the Court emphasized once again the limited nature
of the Terry stop:

"Petitioner's concerns are met by the requirement that a Terry stop must be
justified at its
inception and 'reasonably related in scope to the circumstances which justified' the
initial stop. .
. . Under these principles, an officer may not arrest a suspect for failure to identify himself if the
request for identification is not reasonably related to the circumstances justifying the
stop. . . . It
is clear in this case that the request for identification was 'reasonably related in scope to the
circumstances which justified' the stop." (Emphasis added.) 542 U.S. at 188-89.

Four members of the Court dissented. Justice Stevens would have decided the case on
Fifth Amendment grounds. Nevertheless, he noted that under Terry a law
enforcement officer's
question "'must be "reasonably related in scope to the justification for [the stop's] initiation."'
[Citation omitted.]" 542 U.S. at 193 (Stevens, J., dissenting). In a separate dissent, three other
justices concluded that criminalizing a failure to answer the question violated the limitations
imposed in Terry and its progeny. 542 U.S. at 198 (Breyer, J., dissenting, joined by
Souter and
Ginsburg, JJ.). Thus, the entire Court, in some form, reaffirmed the significant limitations on the
scope of a Terry stop and did so in a manner consistent with Kansas' application of
that limitation.

The opinion in Hiibel was filed on June 21, 2004. Approximately 6 months
later, the
Court decided Caballes (January 24, 2005) and 9 months later Mena
(March 22, 2005). In those
later opinions, the Court limited the issue to whether there was a discrete Fourth Amendment
event–a search or a seizure–and did not address the scope of a Terry
stop. In light of its recent
reaffirmation of Terry principles in Hiibel and the careful limitation of the
issue in Caballes and
Mena to the question of whether there was an additional search or seizure, we are not
persuaded
that Mena can be read as an alteration or abandonment of the rules regarding the
limited scope of
a Terry stop.

Consequently, we hold that the Court of Appeals erred in ruling that Mena
allows law
enforcement officers to expand the scope of a traffic stop to include a search not related to the
purpose of the stop, even if a detainee has given permission for the search. Rather, we continue to
adhere to our longstanding rule that consensual searches during the period of a detention for a
traffic stop are invalid under the Fourth Amendment to the United States Constitution and
§ 15 of
the Kansas Constitution Bill of Rights. The district court correctly applied these precedents and
concluded the request and subsequent search of Smith exceeded the scope of the purpose of her
detention.

Was the Consent to Search Valid?

In addition, the district court concluded the consent to search was tainted by the
impermissible detention. An unconstitutional seizure may infect or taint the consent to search as
well as any fruits of the encounter if the nature of the seizure renders the consent to search
involuntary. Florida v. Royer, 460 U.S. 491, 501, 75 L. Ed. 2d 229, 103 S. Ct. 1319
(1983)
(officer's detention of person beyond limited restraint of Terry investigative stop
taints subsequent
consent to search); see Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441,
83 S. Ct. 407
(1963). Conversely, a voluntary consent to search can purge the primary taint of an illegal seizure
where the connection between the lawless conduct of law enforcement officers and the discovery
of the challenged evidence has become so attenuated as to dissipate the taint. State v.
Reason, 263
Kan. 405, 409, 951 P.2d 538 (1997); State v. Ninci, 262 Kan. 21, 32, 936 P.2d 1364
(1997); see
State v. Childers, 222 Kan. 32, 40, 563 P.2d 999 (1977).

The district court concluded there was no causal break allowing a dissipation of the taint
in this case.

In Childers, we stated that this determination is a question of fact that will not
be
disturbed on appeal if it is supported by the evidence. 222 Kan. at 40-41.

Clearly, in this case the undisputed evidence supports the conclusion there was no causal
break that would purge the taint. Indeed, there was no break between the violation of the scope
restrictions and the search; the two are inextricably entwined. In turn, the knowledge that the
purse's contents revealed evidence of illegal conduct undoubtedly influenced Smith's decision to
give a statement to police. Therefore, the evidence resulting from the search of Smith's purse was
properly suppressed. See Wong Sun, 371 U.S. 471.

Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the
district court is affirmed and the case is remanded.

DAVIS and JOHNSON, JJ., not participating.

LARSON, S.J., and GREENE, J., assigned.1

1REPORTER'S NOTE: Judge Richard D. Greene, of the
Kansas Court of Appeals, was
appointed to hear case No. 96,189 vice Justice Davis pursuant to the authority vested in the
Supreme Court by K.S.A. 20-3002(c). Senior Judge Edward Larson was appointed to hear the
same case vice Justice Johnson pursuant to the authority vested in the Supreme Court by K.S.A.
20-2616.